Prevention of Terrorism Act 2005 (Continuance in force of sections 1 to 9) Order 2007

My Lords, the report is unanimous and transcends any party. We made five main points. The first falls under the heading of parliamentary scrutiny. We say: "““In our view, a debate on a motion to approve an affirmative resolution is a wholly inappropriate procedure for renewal of provisions of such significance. To fail to provide an opportunity to amend the legislation is also, for the second year running, a serious breach of commitments made to Parliament. Parliament is being deprived once again of an opportunity to debate in detail and amend the control orders regime in the light of experience of its operation and concerns about its human rights compatibility. We draw this matter to the attention of each House””." Of course we are too late to draw it to the attention of the other place. This is, in the Minister's words, a serious matter, so I very much hope that if the House divides, whatever else noble Lords do, they reflect on that when deciding how to cast their votes, because parliamentary accountability is not being properly served by the way the Home Office is treating this debate this evening and in the other place. The second main point that we raise is about deprivation of liberty. While we acknowledge that litigation is still pending, we express our concern that the Home Secretary is asking Parliament to renew power which not only our committee, but the High Court and the Court of Appeal, as the noble and learned Lord, Lord Lloyd, has just reminded us, have said is being routinely exercised in breach of one of the most fundamental of all human rights—the right to liberty. We express the view that, "““if the House of Lords or the European Court of Human Rights eventually decides””," as I think that they will, "““that the control orders which have been challenged are unlawful in the absence of a derogation””," then Parliament is being implicit, as are the Government, in maintaining an unlawful regime. The third point is in relation to due process. We express our doubts as to whether the procedures for judicial supervision of the control orders in the Prevention of Terrorism Act 2005, "““secure the substantial measure of procedural justice that is claimed for them””." They do things better in the Canadian Senate than we do in this House. Last month, it published Fundamental Justice in Extraordinary Times: Main Report of the Special Senate Committee on the Anti-Terrorism Act, a 147-page report. I hope that the Home Office has studied that report. If it has—I am sure some of its staff will have, and Ministers may have been told about it—it will know that that committee looked at the special advocate procedure operating in this country. It was not impressed and made an important recommendation, with which I agree. Recommendation 8 states: "““That the special advocate be able to communicate with the party affected by the proceeding, and his or her counsel, after receiving confidential information and attending in camera hearings, and that the government establish clear guidelines and policies to ensure the secrecy of information in the interests of national security””." Has the Minister been advised of the report, and will the Home Office take it carefully into consideration before behaving next time as it has on this occasion? At all events, there are extremely serious issues about due process. We say in our report that we consider that the, "““due process standards should apply to the more restrictive non-derogative orders in view of the severity of the restrictions they contain””." The next point to which my colleague and friend the noble Lord, Lord Judd, referred was prosecution. That again is a very serious matter indeed. The judgment of the High Court in the case of E provides powerful evidence—and we cite others in our report—on our concerns about the seriousness of the Government’s commitment to prosecuting as their first preference. I know that the Minister has said that that would be their first preference, but looking at the evidence we are not satisfied that it is, and the judgment of the High Court confirms our concern. We point out that: "““The lack of effective systems to keep the prospects of prosecution under review, revealed by this case, belies the Government's professed commitment to do so””." I have almost come to the end of our points. The fifth point, to which I do not think the noble Lord, Lord Judd, referred, was the effectiveness of the control orders regime. The report says: "““In our view, the Government’s explanation that individuals who have absconded from control orders or disappeared do not pose a threat to the public raises questions about whether control orders are being used for the purposes for which Parliament was told they were necessary during the passage of the 2005 Act, namely to protect the public from the risk of harm by suspected terrorists … The main significance of the fact that the subjects of ""three control orders have either absconded or disappeared is that it shows the limitations of control orders as a means of protecting the public. In our view, this again demonstrates the urgency of bringing forward measures to facilitate prosecution, which will provide much more effective protection for the public””." That point was made powerfully by the noble Lord, Lord Judd. We then reach our conclusion. We explain that: "““In light of the concerns””," which I have barely summarised, "““we have reached the same conclusion as in last year’s report on renewal of control orders: we seriously question renewal without a proper opportunity for a parliamentary debate on whether derogations from Articles 5(1) and 6(1) ECHR are justifiable, that is, whether the extraordinary measures in the Prevention of Terrorism Act 2005, which the Government seeks to continue in force, are strictly required by the exigencies of the situation””." We earnestly recommend that: "““Parliament should therefore be given an opportunity to debate and decide that question””," which of course it cannot do adequately in the rushed procedure this afternoon. Finally: "““We also draw to Parliament’s attention our serious concerns about the vigour with which the Government is pursuing prosecution as its preferred counter-terrorism measure, and what we now consider to be the urgency of the need to bring forward measures to facilitate prosecution””." Again, I hope that the Minister will tell us in her reply what urgent measures the Government are bringing forward to facilitate prosecution rather than maintaining this extremely unsatisfactory regime.